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To understand the legal culture of the British Empire and the early United States, we must understand the intellectual transformation in the idea of law on which colonial resistance was premised: the shift from jurisdiction to jurisprudence, the rules in a legal system to the rule of law, English liberties to American liberty. The fundamental legal tension of empire was between the rule of law and the expansion of rule, a striving toward universals of government and rights on the one hand and toward increasing territorial jurisdiction on the other. The American founders’ resolution was to attempt to control a space by law that could not possibly be controlled by men.

The expansive space could not be controlled by traditional means because the people moving across it would not submit to such control. This relentless mobility was the paramount expression of popular sovereignty in America, and it expressed more than traditional “customs in common.” Popular constitutionalism, which was performed in petitions, protests, parades, and mobbing, persisted after the Revolution and connected white Americans to their British past. But overland emigration, which only with nationalist hindsight can be called internal migration, had always distinguished North American constitutional culture. That movement, which expressed radical notions of liberty and property, infuriated the British imperial agents while also making some of them rich from land speculation. Frustration fell away after the Revolution, and mobility became the country’s most important capital investment; without it, the Union’s greatest resource—land—remained worthless. And without ties of cultural identity, foremost among which was constitutional identity, much of that land might not have become part of the United States. People moved west, acting out what they believed were their liberties; their governors called them American; lawmakers incorporated them into the Union; because that incorporation offered the settlers the prospect of equal citizenship, they accepted it. In retrospect it is manifest destiny. At the time it was a speculative project, a kind of political speculation. The hard fact of mobility—of popular disregard for jurisdiction in the traditional sense of legal boundaries of both liberty and power—was a fundamental fact of early American constitutionalism.

I like this passage because it does some things I want any work of history to do for me, to show that nothing had to happen, that things could have gone differently, and that people did not know how anything was going to turn out. This expansion into the wilderness somewhat surprisingly gave rise to a country with a more or less unitary system of law, which was consistent with earlier practice but appropriate to new conditions. This did not happen by accident.

As Roscoe Pound describe in “The Formative Era of American Law”, there was a scramble to come up with law which was felt to be appropriate law for US conditions. The first thing people did was apply their traditional treatises, Coke and especially Blackstone, and try to come up with rules that worked from those tried and true sources. In the early years of the Republic (down to 1860 or so), there was popular animosity in the early years toward things English, and a sense during the Jacksonian era that a democratic legislature could and should do anything a majority wanted without any restraint. These attitudes ran afoul of what the lawyers were doing and wanted to do. The better lawyers and judges were too smart for that, no matter how popular it was, and they created an American style of law which was continuous with England’s but not the same. So a countervailing approach was taken by the elite of the bench and bar. The response was the production of treatises on major topics of concern to the bench and bar, which then were widely disseminated. Pound names about a dozen men. James Kent was perhaps the most outstanding example. As Hulsebosch notes:

[New York’s] unusually sophisticated legal culture produced works that influenced law throughout the United States. Paramount among these was James Kent’s Commentaries on American Law (1826-30), a Federalist-inspired primer for students and practitioners. Works like The Federalist Papers, Kent’s Commentaries, and other legal treatises were shipped west on the Erie Canal and helped forge a national legal culture.

(The prolific Joseph Story was the other outstanding treatise-writing founder of American law from this era.)

I will be interested to see how Hulsebosch’s analysis varies from Pound’s much older work.

What arose in America during this era was a common law-derived system, shorn of a lot of its historical baggage, and simplified for ease of use. The British bar was interested in preserving an arcane system that kept up high barriers to entry. That kind of formalism could not survive here. The Americans were interested in a comprehensible system that relative amateurs could make work under difficult and primitive conditions of settlement. The variations from state to federal court, or between state courts, were largely matters of detail. Of course to a practicing lawyer, those details would mean the difference between defeat and victory. But as a matter of legal culture, no lawyer going from one state courthouse to another, or reading the statutes and reported cases of another state (partially excepting Louisiana), would have been unable to make sense of what was going on. It is very much the same today. As a result of the activities of Kent and Story, and countless less famous men, even in the State courts, we acquired something like a uniform national system of law. This was in no way a fore-ordained outcome.

I am sure the book will be good.

Not wanting to wait around all that time for the book to arrive, I dug some more and found this article by him entitled The Ancient Constitution and the Expanding Empire: Sir Edward Coke’s British Jurisprudence. It was most interesting, revealing much I had not known about Lord Coke, and the legal underpinnings of the colonial, pre-revolutionary world. I think it is the best thing I have seen yet on how the common law actually made the transition from Britain to the USA. (It is long — 20 pages, with 14 pages of notes. You’ll need to print it out. Go do that now.) Hulsebosch notes that in Coke’s day, the unwritten English constitution appeared to be under threat from the Stuart kings, specifically that the Stuarts were going to “impose Roman-derived civil law on England”. The modern scholarship suggests that there was no coherent plan to do this. Nonetheless, “the English “parliamentarians and common lawyers” wanted “to erect a barrier against absolute monarchy”. The fear of Stuart usurpation led them to “generate the political fiction of a timeless legal framework guaranteeing the liberty of the subject. At the core of this constitution were common law institutions, like the jury and secure land tenure, that provided ballast against royal governance. Common law was the glue of nationhood, a nation defined as limited monarchy.” Coke participated in this enterprise, and in particular was a critical figure in establishing the independence of the judiciary from the executive. Hulsebosch shows that Coke himself did not believe that the common law applied in lands beyond England. However, by his published cases, which invoked or at least suggested principles underlying the law in any narrow sense, and his treatises which were published and widely circulated, by his record of opposition to the over-reaching of the Stuart kings, and by his promotion of the idea of an “ancient constitution” embodying ancient liberties, Coke came to be seen in the American colonies as an exponent of a more generalized bundle of “English liberties” which were applicable to “Englishmen” outside the jurisdiction of the English common law courts.

Coke’s work contributed more to the spread of common law culture than he could have imagined, let alone intended. American lawyers who invoked Coke did so without respecting the jurisdictional limits of the common law that for him made it the national law of England. Coke had contributed to the sense that English law, especially the common law of property, went abroad, but he never envisioned the common law as a free-floating jurisprudence that could be invoked as a shield against royal administration. This jurisdictional limit on Coke’s jurisprudence was lost as his books circulated through the Atlantic world. …Early Americans encountered Coke’s work in an environment that was close enough to his for basic comprehension and far enough away, in space, time, and political context, to facilitate creative reinterpretation.

All this is gripping stuff. My only quibble with Hulsebosch is his seemingly dismissive references to the “myth” of an ancient English constitution. I think Coke may have been sincere in propounding such a thing, and he was probably right to do so. Even if it is true that there was some politically expedient mythmaking going on, it is also true that the English constitution really was ancient and continuous. F.W. Maitland, the greatest of all historians of English law, put it this way:

…if we look back at the ages which are the most famous in the history of English legislation—the age of Bentham and the radical reform, the age which appropriated the gains that had been won but not secured under the rule of Cromwell, the age of Henry VIII, the age of Edward I (“our English Justinian”)—it must seem to us that, for all their activity, they changed, and could change, but little in the great body of law which they had inherited from their predecessors. Hardly a rule remains unaltered, and yet the body of law that now lives among us is the same body that Blackstone described in the eighteenth century, Coke in the seventeenth, Littleton in the fifteenth, Bracton in the thirteenth, Glanvill in the twelfth. This continuity, this identity, is very real to us if we know that for the last seven hundred years all the judgments of the courts at Westminster have been recorded, and that for the most part they can still be read. Were the world large enough to contain such a book, we might publish not merely a biography, but a journal or diary, of English law, telling what it has done, if not day by day, at least term by term, ever since the reign of Richard I; and eventful though its life may have been, it has had but a single life.

Beyond these seven centuries there lie six other centuries that are but partially and fitfully lit, and in one of them a great catastrophe, the Norman Conquest, befell England and the law of England. However, we never quite lose the thread of the story. Along one path or another we can trace back the footprints, which have their starting-place in some settlement of wild Germans who are invading the soil of Roman provinces, and coming in contact with the civilisation of the old world. Here the trail stops, the dim twilight becomes darkness; we pass from an age in which men seldom write their laws to one in which they cannot write at all. Beyond lies the realm of guesswork.

We never quite lose the thread of the story, for over a millennium. I think “ancient” is a fair adjective under the circumstances.

Prof. Cheung included on his reading list a book entitled The Origin and Growth of the English Constitution: an Historical Treatise in which is Drawn out, by the Light of the Most Recent Researches, the Gradual Development of the English Constitutional System, and the Growth out of that System of the Federal Republic of the United States by one Hannis Taylor, originally published in 2 volumes in 1889. We no longer have book titles like they used to in the good old days. This sounded extraordinarily Anglospheric – i.e. it covered a subject dear to my heart, the transmission of English legal and political institutions to America, where they mutated and evolved in striking ways, yet still discernibly of the same original seed-stock. The book lust was swiftly upon me. Sure enough a tolerably priced set was easily to be had from Bookfinder.com.

Also while poking around, I came upon this article entitled How Equity Reached the Colonies by the Hon. Justice B.H. McPherson, CBE, of Queensland, Australia. This one may be too arcane for non-lawyers. It tells how the Anglophone court systems in the colonies, by one means or another, managed to establish or reestablish courts of equity , despite the initial opposition to it among the colonizing populations – because the equity courts did not have juries, among other reasons. But, why did they all eventually do so? Because, I think, it was an essential part of the system even though not “common law” strictly speaking. And the English speaking legal world has always paid attention to the mother country and to the sister polities and the judges and lawyers managed by hook or by crook to get the complete tool kit — including, importantly, a secure foundation for the law of trusts.

One of the themes of “Anglospheric” history is the idea that England developed on its own unique path, not because it innovated something radically new, but paradoxically because it preserved what was old – medieval constitutionalism – while the rest of Europe adopted the revived Roman law. I stumbled across a reference to a book which seems to address this issue, The Common Legal Past of Europe, 1000-1800, by Manlio Bellomo. It sounds extremely intriguing because I want to get a better grasp of the medieval constitutionalism that preceded the modern era. (The book is described here). Bellomo apparently argues that Europe was ruled under a ius commune that created a body of law that was common to all of Western Europe while preserving local difference, and he decries the rise of codification in the 19th Century down to the present day. However, I think that translating ius commune as “common law” is misleading to English-speakers, for whom “common law” has a very particular meaning. (I found the reference to the Bellomo book at this very interesting site.)

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4 Responses to “The English Legal Foundations of American Liberty — A Tale of Contingency”

And without ties of cultural identity, foremost among which was constitutional identity, much of that land might not have become part of the United States.

I think we can see the potential for this in the experience of the Mormons who essentially rejected an identity as Americans for nearly 40 years after fleeing to lands now called Utah and establishing what they considered their own sovereign nation. Had other groups also followed that course it is possible that North America might now be a balkanized patchwork of mini-states.

I think the great benefit of common law, mythological or not, is that it separates the validity of law from any particular group of individual decision makers. It creates a web of interlocking restrictions of near organic complexity which resist rapid change. Sudden swings in political philosophy cannot alter the law at each generation’s whim. The law has to evolve overtime without sudden leaps. This condition is what makes us a land of “laws not men.” People can trust the law because it is a true abstract entity largely divorced from the politics of the moment.

Given that the distinction between the English and Scottish systems of Law were different enough to be explicitly stated as such in the Acts of Union, it’s probably worth viewing an academic who glosses over that same distinction with a healthy dose of skepticism.

And if you’re wavering over Anderson’s, “Crucible of War”, I can’t recommend it highly enough. Anderson takes excellent advantage of his access to primary original documents from that era, and covers the pre-conflict history in the Ohio valley in a very constuctive manner. Especially as you’ve been cross posting on Albion’s Seedlings, Anderson’s text will fill in a LOT of blank areas.

Where did I say the man glosses over anything? Read the Coke article I linked to and you tell me if he merits a healthy dose of skepticism, or respect for a job well done.

The book just came and I have skimmed it. It looks dense and scholarly, just how I like ’em. I don’t see much glossing over going on. Anyway, the book is about the transmission of English law to America. Scottish law was not an issue. Scottish law stayed in Scotland.

Winston Churchill pointed out in his ‘History of the English Speaking Peoples’ that Coke’s position had been comprehensively rejected in Britain before it was seized on in America:

“Coke, one of the most learned of English judges, gave a blunt answer to these controversies. He declared that conflicts between prerogative and statute should be resolved not by the Crown but by the judges. It was a tremendous assertion, for if the judges were to decide which laws were valid and which were not they would become the ultimate lawgivers in the state… In England his main assertions on behalf of fundamental law were overruled. It was to be otherwise in the United States.”

…

“Power had passed from the lawyers to the leaders of cavalry, and they had left their mark on the Constitution. Coke’s claim that the fundamental law of custom and tradition could not be overborne, even by Crown and Parliament together, and his dream of judges in a Supreme Court of Common Law declaring what was or what was not legal had been extinguished in England forever. It survived in New England across the ocean, one day to emerge in an American revolution directed against both Parliament and Crown.”